Proffitt v. Ricci

• Decision Date: 28 July 1983
• Docket Number: No. 80-400-A,80-400-A
• Citation: 463 A.2d 514
• Parties: George H. PROFFITT v. John J. RICCI. ppeal.
• Court: Rhode Island Supreme Court

Page 514

463 A.2d 514

George H. PROFFITT v. John J. RICCI.

No. 80-400-Appeal.

Supreme Court of Rhode Island.

July 28, 1983.

James P. Flynn, North Kingstown, for plaintiff.

Amato A. DeLuca, Sandra A. Blanding, Revens & DeLuca, Warwick, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the defendant's appeal from a judgment entered in the Superior Court pursuant to an action for assault and battery. The trial justice, sitting without a jury, awarded the plaintiff $2,000 plus interest and costs in compensatory damages. We find that the trial justice committed no reversible error; accordingly, we affirm.

The facts in this case may be briefly summarized. The plaintiff, George H. Proffitt (Proffitt), was a special agent with the Naval Investigative Service, Office of Naval Intelligence at the Quonset Point Naval Air Station (the air station). ¹ In this capacity in which he had served since 1958, he was authorized to investigate crimes committed on the premises of the air station, to perform security clearances for personnel requiring access to classified information, to carry firearms and to make arrests when appropriate. Mr. Peter DeRestie (DeRestie), also a special agent with the Office of Naval Intelligence and plaintiff's immediate supervisor at the time of the incident, testified that there had been an ongoing investigation for alleged bookmaking activities within the confines of the air station. On July 2, 1970, Proffitt had within his possession a command-authorized search warrant for the person, vehicle, and immediate surroundings of defendant, John J. Ricci (Ricci). The defendant, who was employed as a fuel operator at the air station, was en route to the fuel tanks with his partner after having cashed paychecks for himself and a friend. The plaintiff, who was driving an unmarked navy car, cut in front of and stopped the vehicle that defendant was driving. He then requested Ricci to disembark from the vehicle, simultaneously displaying his badge and telling defendant that he was an agent of the Naval Investigative Service. The defendant submitted to the search and began to empty his shirt pocket. He took out a white piece of paper and a small manila envelope. Proffitt then requested that defendant empty his trouser pocket. At this juncture, defendant interrupted the search and stated that this was "his personal money and that nobody was going to take it from him * * *." The plaintiff ordered defendant to proceed with the search but he refused and ran to a Dempsey dumpster where he deposited certain unidentified items. Expressing concern that the gasoline tanks, which he had begun filling prior to cashing the checks, would overflow, defendant climbed back into his truck and told plaintiff "[I]f you want me, I'll be down the other end." ²

The plaintiff then mounted the running board of the truck on the driver's side and attempted to reach the key in order to turn off the ignition. Thereupon, defendant simultaneously accelerated the truck and pushed plaintiff with his elbow, causing plaintiff to fall. ³ The plaintiff landed in such a position that the left rear wheels of the vehicle ran over his right instep, twisting his body as he rolled underneath the truck. Trauma was exerted on his right leg. After returning to his office, Proffitt recounted his version of the incident to DeRestie and went to the naval medical facility for treatment and X-rays. The plaintiff testified that he had a sore right leg and a swollen, discolored foot. These ailments were treated with warm soaks and aspirin.

Approximately two weeks after this incident, Proffitt experienced intense pain in his right leg and knee, a circumstance which prompted another consultation with a physician. The plaintiff testified that if he had not gone on a previously scheduled three-week vacation, he probably would have been out of work for a short period of time. ⁴ His net weekly salary at that time was approximately $200.

The plaintiff returned to work and continued to function in his job. DeRestie testified, however, that between 1970 and 1974 plaintiff requested to stay in the office because of the injury to his knee. Thereafter, Proffitt sought intermittent medical attention in 1974 and 1979 for injuries relating to the incident with defendant. The latter visit resulted in a medical expense to plaintiff of $55.

On June 21, 1972, plaintiff filed a complaint in the Superior Court for assault and battery. Subsequent to defendant's closing argument, but prior to the close of trial, plaintiff moved to amend his complaint to add a count for negligent operation of a motor vehicle. The Superior Court justice granted the motion. In his decision the trial justice held that either the act of elbowing plaintiff or that of accelerating the truck was sufficiently intentional to constitute a battery. Thereafter, defendant filed a timely appeal to this court. The issues raised by defendant will be dealt with in the order in which they appear in his brief.

The defendant first contends that the trial justice committed prejudicial error in finding for plaintiff on the claim of assault and battery. We do not agree. This court has consistently held that the findings of fact made by a trial justice, sitting without a jury, will be accorded great weight. Such findings will not be disturbed on appeal unless it is shown that the trial justice misconceived or overlooked relevant evidence or was otherwise clearly wrong. Berube v. Montgomery, 463 A.2d 158 (R.I., 1983); Altieri v. Dolan, R.I., 423 A.2d 482, 484 (1980); Taffinder v. Thomas, 119 R.I. 545, 549, 381 A.2d 519, 521 (1977); see 1 Kent, R.I.Civ.Prac. § 52.5 at 384 (1969).

Since in most cases assault and battery arise out of a single transaction, it has become customary to refer in legal terminology to the term "assault and battery" as if it were a legal unit or a single concept. Actually, however, assault and battery are separate and different acts, each with independent significance. See generally, Prosser, Handbook of the Law of Torts §§ 9 & 10 at 34-41 (4th ed. 1971). An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm. Liu v. Sugarman, 105 R.I. 727, 254 A.2d 753 (1969); Webbier v. Thoroughbred Racing Protective Bureau, Inc., 105 R.I. 605, 254 A.2d 285 (1969); see Restatement (Second) Torts, § 21 at 37 (1965). The plaintiff's apprehension of injury renders defendant's act compensable. Webbier, 105 R.I. at 614, 254 A.2d at 290. Battery refers to an act that was intended to cause, and does cause, an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. ⁵ See Prosser, § 9 at 35. An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury. Mooney v. Carter, 114 Colo. 267, 273, 160 P.2d 390, 392 (1945) (operating car so as to throw plaintiff off running board); see Prosser, § 9 at 35.

In the case at bar, plaintiff, an agent of the Office of Naval Intelligence, was engaged in the performance of his duty at a place where he had a right to be. The defendant by his own testimony admits that at the time of the incident Proffitt identified himself as being associated with Naval Intelligence. Moreover, defendant concedes that with the engine of his vehicle running, he told plaintiff to "[g]et off the [running board of the] truck because I'm going * * *." It was not necessary that defendant intend to injure plaintiff. To constitute a battery, it is enough to set in motion willfully a force that in its ordinary course causes an injury. Mooney v. Carter, 114 Colo. at 273, 160 P.2d at 392. Therefore, when defendant implemented his threat by either accelerating the truck or lifting his elbow to strike, plaintiff was placed in reasonable apprehension of imminent bodily harm. When defendant's elbow struck plaintiff or when plaintiff was thrown to the ground by reason of the acceleration of the truck, the battery was complete. Accordingly, the evidence of either action was sufficient to support the trial justice's finding that defendant was liable for the tort of assault and battery.

We are not persuaded by defendant's contention that the trial justice's admission of oral testimony pertaining to the command-authorized search warrant constituted a violation of the best-evidence rule. As we held in State...